Donald Trump keeps Don McGahn hidden away, contempt vote coming

Donald Trump is putting former White House lawyer Don McGhan through the ultimate loyalty test. Don’t show up for a subpoena and risk losing your law license or do the patriotic legal thing. McGhan chose to side with Trump for now.

House
Judiciary Chairman Jerrold Nadler gaveled open a Trump-Russia hearing Tuesday
with an empty witness chair and a stern warning that former White House Counsel Don McGahn will be held in contempt for failing to appear in defiance of the
committee’s subpoena..

“Our subpoenas are not
optional,” Nadler said. The panel will hear from McGahn “one way or another,”
he said. “This committee will have no choice but to enforce the subpoena
against him.”

Democrats are facing yet
another attempt by President Donald Trump to stonewall their investigations.
This time they’re blocked from hearing from McGahn — a chief eyewitness to the president’s handling of
the federal Russia investigation — on orders from the White House.

Rep. Doug Collins, the
ranking Republican on the Judiciary Committee, spoke scornfully of Nadler’s
position, calling the session a “circus” and saying the chairman preferred a
public “fight over fact-finding.”

Democrats are “trying
desperately to make something out of nothing,” Collins said, in the aftermath
of special counsel Robert Mueller’s findings in the Russia probe.

The committee voted to
adjourn the hearing immediately after Collins’ remarks.

A lawyer for
McGahn had said he would follow the president’s directive and skip Tuesday’s
hearing, leaving the Democrats without yet another witness — and a growing
debate within the party about how to respond.

House Speaker Nancy
Pelosi, backed by Nadler, is taking a step-by-step approach to the
confrontations with Trump. Nadler said the committee would vote to hold McGahn
in contempt, and take the issue to court.

“We will not allow the
president to stop this investigation,” the chairman said. A contempt vote is
not expected until June, as lawmakers are scheduled to leave town for a
weeklong recess.

Democrats are encouraged
by an early success on that route as a federal judge ruled against Trump on
Monday in a financial records dispute with Congress. Trump’s team filed notice
Tuesday that they would appeal.

But Pelosi’s strategy
hasn’t been swift enough for some members of the Judiciary panel who feel
Democrats should be more aggressive and launch a formal impeachment inquiry as
they try to get information from the administration. Impeachment hearings would
give Democrats more standing in court and could stop short of a vote to remove
the president.

The issue was raised in a
meeting among top Democrats Monday evening, where some members confronted
Pelosi about it, according to three people familiar with the private
conversation who requested anonymity to discuss it.

Maryland Rep. Jamie Raskin
made the case that launching an impeachment inquiry would consolidate the Trump
investigations and allow Democrats to keep more focus on their other
legislative work, according to the people.

Pelosi pushed back, noting
that several committees are doing investigations already and they have already
been successful in one court case. But some members, several of whom have
spoken publicly about a need to be more aggressive with Trump, are increasingly
impatient. Other Democrats in the meeting siding with Raskin included Rhode
Island Rep. David Cicilline, California Rep. Ted Lieu and freshman Colorado
Rep. Joe Neguse.

Just before the start of
Monday’s meeting, Cicilline tweeted: “If Don McGahn does not testify tomorrow,
it will be time to begin an impeachment inquiry of @realDonaldTrump.”

In the hours after the
discussion, Pelosi and Nadler met privately. Shortly afterward, Nadler said
“it’s possible” when asked about impeachment hearings.

“The president’s
continuing lawless conduct is making it harder and harder to rule out
impeachment or any other enforcement action,” Nadler said.

McGahn’s refusal to
testify is the latest of several moves to block Democratic investigations by
Trump, who has said his administration will fight “all of the subpoenas.” The
Judiciary Committee voted to hold Attorney General William Barr in contempt
earlier this month after he declined to provide an unredacted version of
special counsel Mueller’s report. And the House intelligence committee is
expected to vote on a separate “enforcement action” against the Justice
Department this week after Barr declined a similar request from that panel.

McGahn’s lawyer, William
Burck, said in a letter to Nadler that McGahn is “conscious of the duties he,
as an attorney, owes to his former client” and would decline to appear Tuesday.

Still, Burck encouraged
the committee to negotiate a compromise with the White House, saying that his
client “again finds himself facing contradictory instructions from two co-equal
branches of government.”

McGahn was a key figure in
Mueller’s investigation, describing ways in which the president sought to
curtail that federal probe. Democrats have hoped to question him as a way to
focus attention on Mueller’s findings and further investigate whether Trump did
obstruct justice.

If McGahn were to defy
Trump and testify before Congress, it could endanger his own career in
Republican politics and put his law firm, Jones Day, in the president’s
crosshairs. Trump has mused about instructing Republicans to cease dealing with
the firm, which is deeply intertwined in Washington with the GOP, according to
one White House official and a Republican close to the White House not
authorized to speak publicly about private conversations.

Administration officials
mulled various legal options before settling on providing McGahn with a legal
opinion from the Department of Justice to justify defying the subpoena.

“The immunity of the
President’s immediate advisers from compelled congressional testimony on
matters related to their official responsibilities has long been recognized and
arises from the fundamental workings of the separation of powers,” the
department’s opinion reads.

A federal judge rejected a
similar argument in 2008 in a dispute over a subpoena for Harriet Miers, who
was White House counsel to George W. Bush. U.S. District Judge John Bates said
it was an unprecedented notion that a White House official would be absolutely
immune from being compelled to testify before Congress. Miers had to show up
for her testimony, but still had the right to assert executive privilege in
response to any specific questions posed by legislators, said the judge.

But in 2014, under the
Obama administration, the Justice Department issued an opinion arguing that if
Congress could force the president’s closest advisers to testify about matters
that happened during their tenure, it would “threaten executive branch
confidentiality, which is necessary (among other things) to ensure that the
President can obtain the type of sound and candid advice that is essential to
the effective discharge of his constitutional duties.”

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